AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (3) TMI 679
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....hat there is a sufficient cause for filing the appeal belatedly and accordingly the delay in filing the appeal is condoned and appeal is admitted. 3. Briefly stated, assessee is a milk vendor and along with his father and three brothers, sold a property which was held in joint ownership. The entire property was sold for Rs. 22 Lakhs and assessee's share was 1/5th being 4,40,000/-. Assessing Officer (AO) issued a notice in the capacity of an individual and on the last day of time barring date, assessee filed a NIL return. AO has completed the assessment on the very same day. AO brought to tax an amount of Rs. 9,08,902/- as assessee's share of property adopting the SRO value. It was the contention of assessee that property belongs to the HUF, the property sold was not land or building but tenancy rights and the adoption of SRO value u/s. 50C does not arise in assessee's case. It was also contended that the information received for issuance of notice was that an amount of Rs. 46,15,635/- was invested in purchase of property, whereas assessee has not invested in any property but sold during the year. AO accepted the above contention but on issue of sale consideration, he adopted the S....
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....ax (Appeals) is erroneous to the extent it is prejudicial to the appellant. 2. The learned Commissioner of Income-Tax (Appeals) ought to have seen that there is no gain with reference to the impugned transaction and that no capital gain arose to the appellant. 3. The learned Commissioner of Income-Tax (Appeals) ought not to have directed the Assessing officer to take action in the case of HUF particularly when no income escaped assessment even in the assessment of the HUF. 4. The learned Commissioner of Income-Tax (Appeals) ought to have held that no capital gain arose to the appellant. 5. The learned Commissioner of Income-Tax (Appeals) ought to have held that the consideration and the cost of acquisition were not correctly adopted by the Assessing Officer. 6. The learned Commissioner of Income-Tax (Appeals) ought to have seen that the direction to assess the income in another case cannot be given by the appellate authority and that such a direction is not legally valid. 7. Any other ground that may be urged at the time of hearing". 6. Ld. Counsel in the course of argument has only referred to Ground No. 3 and Ground No.6, whereas the other grounds are not required t....
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....on 3 to Section 153 (prior to its amendment w.e.f. 01-06-2016), the CIT(A) could not have issued any such direction without giving an opportunity of being heard to such other person before the said order was passed. In this case, Shri A. Ramakrishna-individual is entirely different from A. Ramakrishna-HUF. Income Tax Act treats them as separate 'person'. Even though HUF is represented by Shri A. Ramakrishna, still as per law, Shri A. Ramakrishna-HUF is 'such other person' within the meaning of the expression provided in Explanation 3. As seen from the record, the CIT(A) has not given any opportunity to such other person before a direction was given. Therefore, the direction given violates not only the provisions of law but also the principles of natural justice. The direction cannot be upheld on these reasons. 10. In the case of Vijay Kumar Sarda Vs. DCIT [146 ITD 553] (Mumbai-Trib) (supra), the Co-ordinate Bench at Mumbai has considered similar direction and held as under: "8.We have carefully considered the rival submissions and perused the record. Under section 251 of the Income Tax Act the first Appellate Authority has the powers to confirm, reduce, enhance or annual the asse....
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....he first ingredient is that there must be a finding that the income excluded from the total income of one person is the income of another person. The second ingredient is that the order must be one which has come to be passed after the other person was given an opportunity of being heard. The person concerned must be put on notice that the consequence of the income being held as her income is likely to adversely affect her tax liability. 9.In the instant case the learned CIT(A) has not called for any record either from the AO or from the affected parties before coming to the conclusion as to why the alleged payment was made from the undisclosed sources of income, more particularly when the AO was firmly of the opinion that she would not have been in a position to pay such huge amount since she had no other income to make such payment. The expression 'may be deemed to be the income' under section 69A of the Act implies that even after coming to the conclusion that a sum of Rs. 16,51,000/- would have been paid for surrender of tenancy rights it is not automatic that such addition should be made under section 69A of the Act unless it is shown that she was capable of having so much o....
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.... section 250.....' is akin to the expression used in section 150(1) i.e. 'any finding or direction contained in an order passed by any authority in any proceeding under this Act by way of an appeal'. In other words, in order to extend the time limit under section 148 of the Act, by taking aid of section 150 or 153of the Act, the first Appellate Authority has to take into consideration the fact that the finding or direction should be relevant for the subject matter of dispute and, when it affects a third party, principles of natural justice demands that such third party should have been given an opportunity as otherwise such direction deserves to be set aside as invalid. 13.Similar view was taken by the ITAT Hyderabad Bench in the case of Pennar Electronics P. Ltd. 308 ITR (AT) 192. At page 203 the ITAT Hyderabad Benches had taken support of the view taken by the Hon'ble Patna High Court in the case of Gauri Shankar Choudhary 234 ITR 865 to observe that resort to sub-section (1) of section 150 of the Act can be taken only in cases where it becomes necessary to make assessment or reassessment or recomputation and such direction must relate to the assessee in question and not an....